Tag Archives: rights

A Conservative’s View….

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My latest effort, a pamphlet on the American legal system (because I don’t lack for ego), A Conservative’s View of the American Concept of Law, has been released, and it can be found on amazon.com: https://amzn.to/2L4iVXx .  Links also can be found on my Books page.

Our legal system is explicitly founded on natural law through our Creator’s endowment—the origin and source of our fundamental principles.

Though government should not legislate morality beyond a very narrow arena (vis., a measure of specificity regarding types of homicide and theft; strictly limited controls on bearing false witness, etc.), with natural law as the foundation of our legal system, morality inescapably informs it.  This is so because morality flows from the Creator-endowed and individually-imbued nature of our inalienable rights to life, liberty, and the pursuit of happiness. Our social compact was founded explicitly to protect these.  From that, our statutes are at their best when limited to attempts to implement and protect those foundational principles and nothing more. Any further legislation should be limited to improvements on those strictly circumscribed efforts. In particular, legislation should not be used to generate new morals.

The nature of our American judiciary and the proper role of judges in our jurisprudence has been argued throughout our history, but the argument has been especially virulent over the last dozen or so years.  The current dispute (I don’t call it a debate) centers on whether our Constitution means what it says and neither more nor less, or whether it’s a living document that should grow and adjust to meet a judge’s understanding of changing times and mores.

In this pamphlet, I lay out three key propositions.  The first is that only Congress may make law.  The second is that judges may strike a law before them as unconstitutional, but if they do not, they must apply the law as written.  The third is that the Constitution must be applied as it is written.  Alterations or updates to it are political decisions, and thus only We the People may make them.

Understand: I’m not writing about the origins of the idea of law or of systems of law.  A plethora of legal philosophers (HLA Hart, Jeremy Bentham, John Austin, and Gustav Radbruch to mention a few Western ones) treat these subjects should the reader wish to explore them. I begin later, with the principles underlying our American legal system.

 

Keep in mind, too, that government, per se, does not make law; the men who populate the government do.

 

Finally, Justice Antonin Scalia made this claim in his A Matter of Interpretation,

Surely this is a sad commentary: we American judges have no intelligible theory of what we do most.
Even sadder, however, is the fact that the American bar and American legal education, by and large, are unconcerned with the fact that we have no intelligible theory.

I agree, and in my hubris, I offer the beginnings of such a theory here.

Brussels Interferes Again

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Now the European Court of Justice has decided to weigh in on Brexit.

The European Court of Justice’s opinion, which requires confirmation in a final court ruling, says the U.K. can unilaterally stop the process of leaving the EU, something that Brussels and the U.K. government had sought to oppose. A final ruling is expected within the next few weeks.

This is yet another cynical effort by Brussels to interfere in the domestic affairs of a sovereign nation, this time compounded by Brussels’ insistence on punishing the Brits for their impertinence.

Were this a serious, honest move, they would have issued this opinion two years ago, at the outset of the sham negotiations.

PC Police-ism

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In re the matter of Professor Richard Ned Lebow, of King’s College London, and Professor Simona Sharoni, of Merrimack College and a member of the International Studies Association, the ISA’s Executive Committee has spoken.

I demur from the ISA’s politically correct (if ever there were an oxymoron, here is one) position, in particular their Item 7.

7) … Although you explained that your comment was intended as a joking reference to an old, cultural trope, your email was not apologetic and PRR (and eventually ExComm) found that it was marginalizing and trivializing Prof. Sharoni’s reaction to your comment and that it was an attempt to intimidate her….

It was, in fact, a joke–funny or not depending on the audience, but clearly a joke, nonetheless.  Indeed, I didn’t think it that funny, if only because it’s so old and used up.

Accordingly,

  1. no apology was warranted
  2. Sharoni’s manufactured overreaction deserved marginalization and trivialization
  3. There was no attempt to intimidate, and if Sharoni claimed she was, she either is a fragile snowflake of breathtaking dimension, or she carefully manufactured that response as well.

Justice and Law

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An Indian, a Creek, stands accused of murdering a fellow tribesman.  He was arrested on the Creek’s Oklahoma reservation, and with that, he’s demanding that he be tried in Federal court rather than in an Oklahoma State court.  The matter of which court should have jurisdiction, which centers on the existence or absence of the Creek Nation reservation in Oklahoma, now is before the US Supreme Court.

The government’s lawyer, US Deputy Solicitor General Edwin Kneedler, declaimed

This would be a dramatic change from the way everyone has understood it for the past 100 years[.]

He continued:

[A]ny crime involving an Indian as a victim or a perpetrator would be subject to federal jurisdiction, not state jurisdiction, and there are not the FBI resources, the US attorney resources, the other resources.

With that he argued—with a straight face—that the government’s convenience is legitimate reason for denying justice.  On the contrary: if government agencies lack the resources to do their jobs, it’s Congress’ responsibility to get them the resources, not an individual’s responsibility to surrender his right to justice.

It gets worse, from no less a light than Justice Brett Kavanaugh, especially in light of the fact that Congress has not—ever—abolished the Creek reservation, even as it has, step by step, removed critical aspects of Creek Nation sovereignty on that reservation:

Stability is a critical value in judicial decision-making, and we would be departing from that and creating a great deal of turmoil [if we rule the Creek reservation continues to exist]. Why shouldn’t the historical practice, the contemporaneous understanding, the 100 years, all the practical implications say leave well enough alone here?

That’s a breathtakingly Brandeis-ian view of justice from an avowed textualist.  It’s better, opined Brandeis—and now Kavanaugh—that the law be settled than that it be settled right.  Wow.

Here’s the depth of the injustice that’s being argued should be maintained:

In treaties dating from the 1830s, the US pledged to “secure a country and permanent home to the whole Creek nation of Indians,” yet in following decades it took official and practical steps that stripped them of both power and property.

And, with no hint of irony whatsoever,

[G]overnment lawyers sought to persuade the court that the US decided to betray its promises completely, rather than only in large part. Since Congress never expressly voted to abolish the reservation, attorney Lisa Blatt, representing Oklahoma, pointed to a series of steps that she said effectively did the same thing—abolishing tribal courts, canceling tribal taxes, making tribal law unenforceable, compelling the tribe to sell its property.

And the governments’ lawyers argued further that correcting this long-standing injustice would present chaos to the State and to the Federal governments: that lack of resources mentioned at the outset and, given the size of the Creek reservation compared to the size of Oklahoma, to the manner in which the State would have to enforce its laws.

But this is a cynical distortion of the matter.  The chaos already exists in the loss of access to justice for all those decades of years. Certainly, there would be some disruption were the governments involved required to correct their ancient error, but on the other side of that disruption would be the greater stability of true adherence to the law, a stability that would replace the instability of an arbitrary breakage of it.

That an injustice has existed for 100 years means only that it is a 100-year-old injustice; its hoary age in no way legitimizes the matter.

Guns and Killings

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This, from no less a Liberal outlet than the Chicago Tribune.  John Lott, Jr, Crime Prevention Research Center President, provided some gun-related killings statistics for the Tribune.  He began by defining what constitutes mass killings, a term too often bandied about without definition.  The FBI’s definition is what he used.

  • shootings must claim four or more lives in a public place
  • shootings must be carried out simply with the intention of killing
    • excluded are gang fight killings because they tend to be motivated by battles for drug turf
    • excluded are murders incidental to other crimes
    • excluded are politically motivated attacks, such as assassinations or killings pursuant to guerrilla conflicts

The he came to the actual data.

Of the 97 countries where we identified mass public shootings,

  • the US ranks 64th per capita in its rate of attacks of the 97 countries with mass public shootings
  • the US ranks 65th in fatalities.
  • Tightly gun-controlled European countries, such as Norway, Finland, France, Switzerland and Russia, each have 25%+ higher per capita murder rates than the US

In the interval from 1998 to 2015, there were

  • 2,354 attacks and at least 4,880 shooters outside the US
  • 53 attacks and 57 shooters in the US

The US has 4.6% of the world’s population but only 1.49% of the murders, 2.20% of the attacks, and less than 1.15% of the mass public shooters worldwide.

And: of all the mass public shootings that have occurred since 1950 98% have occurred in places where citizens are banned from having guns.

What’s missing from the research is all the mass shooting attempts that have been short-circuited or stopped altogether by citizens on scene when the incidents began—the true first responders—who had firearms on their person and so could respond inside the two-five minutes that even a talented, trained, and motivated policeman and police force will need to arrive—after the call, with its intendent delay, goes out.  Occurrences illustrated by these anecdotes.

  • a concealed handgun permit holder stopped an alleged killer who was shooting blacks at a Kroger grocery store in Louisville, KY
  • armed off duty policemen stopped a mass killer wannabe before he could get started at a Draw Mohammed contest in Dallas, TX
  • two gunmen in College Park, who herded party-goers into separate male-female groups and then compared the number of bullets they had with human targets were stopped by one partier who was able to reach his pistol, engaged the two, killing one